Wednesday, November 30, 2011

Here is why opponents of the Walker recall might be reasonably concerned about the interaction of 1) the GAB's statement that it is not only "not illegal" to sign more than one recall petition but that voters should do it if they fear a petition might not be turned in, 2) the left's hyping of a so far undetected plot to circulate and destroy false recall petitions and 3) the decision of at least some recall organizers to tell people that they may - and arguably encourage them to - sign more than one petition.

Everyone agrees that the administrative burdens presented by a gubernatorial recall are unprecedented. Determining the validity of over 500,000 signatures and ensuring that there are no duplicates is so difficult that the GAB has pretty much thrown in the towel. Aside from a cursory review for obvious inefficiencies, it intends to presume the validity of the signatures. This, it says, reflects an expectation that those who submit the signatures won't turn in duplicates or invalid signatures and the belief that recall opponents will be able to ferret out anything untoward.

That's how it usually works but there are a few problems here. First, the volume that makes it difficult for the GAB to vet over a half million signatures also applies to the ability of recall opponents to do so. Second, it is, I think, somewhat unusual for recall organizers to explicitly tell (some would say encourage) people to sign petitions more than once. This makes it likely that duplicates could be a problem.

This is so even if it is legal to sign a petition more than once. Contrary to some media reports and blogger claims, state law does not expressly permit this, it simply does not expressly prohibit it. I suppose that one might argue that signing a petition more than once is fraud in connection with a recall petition. Personally, I would not wish to see people prosecuted for that because I believe that criminal statutes ought to be construed narrowly and fraud is, moreover, a matter of intent. But the matter may not be as clear as GAB says.

A closer question might be presented with respect to recall organizers who submit petitions knowing, or with no regard for, whether they contain duplicates. State law is quite clear on the number of individual voters who must sign recall petitions. Arguably, submission of petitions constitutes a representation that the requisite number has been obtained. But if one tells people that they may sign more than once and then does nothing to eliminate duplicates (particularly knowing that the GAB won't do so), has one made a false statement with respect to a recall petition? What if the actual number of individual electors signing is less than the requisite amount?

Again, I don't think that prosecuting people who have not knowingly submitted duplicates in an effort to create a false impression that the requisite number of signatures is a good idea, but we are dealing with a confluence of factors that potentially affects the integrity of the process.

Recall proponents, as near as I can tell, defend their behavior because a couple of guys on Facebook (who could have been anybody or nobody) said they were going to collect recall petitions and destroy them. The GAB, while acknowledging that it had no evidence that anyone was really planning to do this, issued a much publicized warning against recall fraud that appears to have been used by some as a justification to tell folks that they may -and perhaps should - sign early and often.

Some lefty bloggers are using three incidents in which they claim someone "destroyed a petition" but none of these instances involved the circulation of false petitions. To the contrary, they involved two individuals who grabbed a petition from actual recall organizers and either ripped them up and one who seems to have either tore or poked a hole in the page. This type of thing is alleged to have happened before (including by Democrats) but would not seem to constitute an existential threat to the recall effort that would justify deliberately seeking - or providing - multiple signatures.

At this point, it would seem that duplicate signatures are a far more serious problem than destroyed signatures. It is, of course, possible that there are "false flag" circulators. Just as I am unwilling to assume that "no one" would engage in fraud when it comes to voter registration and voting, I am not going to assume it away here. Whether that justifies what some might reasonably see as the encouragement of multiple signatures is another matter.

Will this turn into a significant problem? It is quite possible that recall opponents will be able to vet the submitted signatures for duplicates. Perhaps the number of signatures will be sufficiently in excess of the required amount to make duplicates immaterial. Nevertheless, there is something that is unseemly about telling people they may sign more than once when neither the organizers or the reviewing government agency intend to do anything to eliminate duplicates.

If the recall was going the other way, i.e, if the Republicans were attempting to recall a Democratic governor, can anyone doubt that folks on the left would have the same concerns?

I am quoted in a Channel Four story on the questions regarding the number of voters registered at an property owned by Senator Lena Taylor. Of course - as is always and necessarily the case with televison newcasts - what could be included in the broadcast is only part of a longer interview. It is my view that the matter needs to be investigated.

In my opinion, the best reading of the law is that a person, to properly register from that address, must have sheltered there for at least ten days prior to the election or, arguably, to have once established a domicile there and not yet acquired a new one. Given the capacity of the building and the large number of registrants and voters from that address, it is reasonable to question whether this was in fact the case. This is particularly so in light of Senator Taylor's reported statement that her mother allowed the address to be used for voting purposes for people who "come and go" and the large number of voters who were "vouched for" by the elder Taylor.

This is not to say - and I emphasized during the interview and on this blog - that anything untoward occurred. We don't know that yet. It is possible that there is a benign explanation for what appears to be an unusually high number of voters at the address. Nor do I think we should rush to suggest that anyone involved acted with malicious intent. We only know that there are reasons to ask questions. Further detail on how I think the answers to those questions should be evaluated can be found here.

On the other hand, the incident can be seen as an example of why voter registration and practice needed to be tightened.

Tuesday, November 29, 2011

Two things struck me about PolitiFact's evaluation of claims by Governor Walker and WEAC on the impact of the Walker budget and collective bargaining reforms.

First, is the willingness of WEAC to attribute retirements to collective bargaining reform. Continuing to work would not diminish the retirement benefits of any teacher or other public employee. The only reason that one might decide to retire as a result of reform is a judgment that having one's take home income reduced by approximately 5.8% makes continued work no longer worth it.

I am prepared to believe that may happen in some - albeit perhaps not many - cases. Part of the reason that it may, of course, is the generous retirement compensation and early eligibility that has become so problematic. Still, I am glad to see our friends on the left finally come to recognize the impact of changes in marginal returns on incentives. For just as another 5.8% to the pension might cause some people to prefer retirement, an additional - let's say 5.8% added to the marginal tax rate - might cause some people to prefer leisure to work.

Second, the biggest problem with the WEAC ad is one that the Journal Sentinel misses. The paper argues that it was false to claim that nearly 4000 "educators" lost their jobs as a result of reform because some of these persons held administrative or support positions, some retirements and other staff reductions might have other causes and it could be wrong to assume that district who did not respond the the survey had the same experience as those that did. Fair enough.

But here's a more fundamental problem.

There was a net staffing reduction of approximately 3400 in responding districts. Roughly half that reduction comes from one district - Milwaukee - where the Governor's reforms were not implemented. Although one might say that these reductions were still attributable - at least to some degree - to reductions in state aid, they also seem to have had a lot to do with the districts' inability to use the Governors' tools for dealing with aid reductions. Those layoff are on the MTEA and other unions, not the need to balance the budget.

Monday, November 28, 2011

In yesterday's Journal Sentinel article on the challenge to holding recalls in old Senate districts, Loyola Law Professor Justin Leavitt is quoted as saying that a recent summary affirmance of a district court decision in Mississippi by the Supreme Court "mirrors" what happened in Wisconsin such that the challenge is likely to fail.

Maybe not.

As I argued here and here, courts have not required immediate redistricting after completion of a decennial census. This reflects a pragmatic judgment that state legislatures ought to have some time to complete a difficult task. In that sense, the recent affirmance in Mississippi State Conference of NAACP v. Barbour is not surprising.

But, as I also argued (albeit in posts written before the Mississippi State Conference decision), it is not clear that the same pragmatic concern applies to recalls held after redistricting occurs. That is not what happened in Mississippi and thus it is unclear what impact the case will have here. Because it was a summary affirmance (i.e., the Court issued no opinion and did not explain its rationale), the issue is unresolved.

My column in Friday's Journal Sentinel and blogging social worker Chris Liebenthal's response were featured on WisOpinion.
I think Liebenthal's criticisms were anticipated and responded to in the column. He fails to acknowledge that I defended the current - very long - limitations period for such victims precisely because it can take a long time to bring an action.

But a long period within which to bring suit doesn't mean that there should be no cut off point. He does nothing to refute my point that testing the veracity of allegations about things that happened over twenty years ago is difficult (which is one of the reasons limitations periods are usually a fraction of what they are in child sex abuse cases) and doesn't address the inefficiencies inherent in imposing liabilities - often vicarious - on organizations for actions that happened on the watch of those who are long gone. He doesn't acknowledge that "flashbacks" and "recovered memories" can be wrong. On the merits of the question called, her offers little.

But there is this to say.

Mr. Liebenthal (in a parenthetical) totally misses the point of this blog's title.

He writes that the "shark" "is supposed to represent his skills as a lawyer"* and "[t]he shepherd is supposed to involve his
alleged Christian values."*

Completely wrong.

As my reference to Private Joker in Full Metal Jacket makes painfully obvious, the shark and shepherd refer to competing tendencies to competition and cooperation, aggression and conciliation, charity and holding others accountable - in the same person. We are all varying degrees of shark and shepherd and both characters have their own strengths and weaknesses.

Liebenthal's lack of subtlety is reflected in his assumption that someone who thinks that permitting actions to be brought 20-30 years after the fact is a reasonable policy is "a lousy Christian and even worse human being." This equation of his preferred resolution of the tradeoff between finality and fairness to the accused on the one hand and permitting potentially meritorious claims on the other to whether someone is a good person reflects his own inability to appreciate the paradoxical nature of life and the fact that so much of our policy differences are about resolving competing goods.

We can agree that it is good to allow people to recover from people who wronged them. But it is also good to prevent people who did no harm from being held liable. Liebenthal's sense of moral self righteousness reflects an inability to recognize the shark and shepherd in his own soul.

But here's a question for Mr. Liebenthal. School districts and other public entities have a variety of legal protections against claims of child sex abuse including a $ 50,000 damages cap and qualified immunity. Does he support repealing them forthwith? Will he publicly urge Sen. Lassa and Rep. Pasch to introduce legislation repealing these obstacles to bring school districts and other public agencies who have sheltered sex offenders (who are no more likely to be found in the church than in the schools) forthwith? If he doesn't, can I say that he's a lousy human being?

*Gracious to the end, Liebenthal takes a shot at both my legal abilities and moral character. On the former, while, of course, deeply wounded by the judgment of an over the top political activist who has repeatedly embarrassed himself with his intemperate blogging and professional misconduct. I'll take solace in my professional reputation, resume and the fact that I have to turn away work. As to the latter, I make no claim of moral superiority (and certainly not over my political opponents) and do not even say that I am a good Catholic or good Christian. I try. I can do better.

Tuesday, November 22, 2011

We have had a series of reports about potential voting irregularities in the past week. Part of the desideratum of those who oppose vigilance on fraud is that it can't happen and has never been proven. That view is wrong but one might point out that jumping all over reports of things that raise the appearance of impropriety and then arguing that impropriety never occurs is a little dicey.

So let's review where we are. The more important story is the report that 36 people are registered to vote from a property owned by Sen. Lena Taylor at which many fewer than 36 people could legally reside.

This does not, in and of itself, establish that anything untoward was going on here. Maybe there was a great deal of turnover at the property. It may well be that no one who voted from that address was not residing (in the legal sense) at that address.

But that's the question, isn't it? I take from media reports that Sen. Taylor's mother vouched (as the law used to permit) that a number of voters resided at the property. In the terms of prior law (since repealed by the photo ID law), she was a corroborator and signed a statement affirming that the registrant was who he or she claimed to be and resided where he or she claimed to reside.

This is where it becomes legitimate to raise questions. A corroborator must know that what she is corroborating is true. Sen. Taylor's own statements - at least as reported by the media - suggest that her mother may have allowed people who were homeless to "use" the address for voting purposes.

Is that legal? Let's look at the law. Residency for voting purposes is defined in Wis. Stat. sec, 6.10. There is no provision that directly address the residency of homeless persons but two that may be thought to apply.

Sec. 6.10(4) provides that:

The residence of an unmarried person in a transient vocation, a teacher or a student who boards at different places for part of the week, month, or year, if one of the places is the residence of the person's parents, is the place of the parents' residence unless through registration or similar act the person elects to establish a residence elsewhere. If the person has no parents and if the person has not registered elsewhere, the person's residence shall be at the place that the person considered his or her residence in preference to any other for at least 28 consecutive days [formerly ten days] before an election. If this place is within the municipality, the person is entitled to all the privileges and subject to all the duties of other citizens having their residence there, including voting.* (Clarification added.)

Of course, a homeless person is not "in a transient vocation" and there are reasons to believe that the issues presented by someone who is - and, for that reason, a person "in motion" - are different than they would be someone who is homeless.

More helpful, perhaps, is sec. 6.10(7) which provides that:

A guest at a national or a state soldiers' home in this state, a guest at a home for the aged supported by benevolence, or a patient of any county home or other charitable institution, resides in the municipality where the home is located and within the ward where the guest or patient sleeps, unless before becoming a guest or patient at the home the guest or patient elects to maintain his or her prior residence as his or her voting residence.

We normally would not regard a homeless person as a "patient" but perhaps we could use this section to argue that a homeless person resides where he or she shelters.

This is the position that the GAB takes. It also permits homeless persons to use "nontraditional" addresses such a a park or street corner that he or she frequents. It is also possible for a homeless person to use his or her last domicile if he or she has not acquired a new one and intends to return to the old one. That approach is consistent with the outcome of litigation in other states.
But this requires some connection with the address. The GAB, for example, permits an address to be used "where a homeless individual may spend time or return to when absent." It says that a homeless person who has "established a residence, ... may continue to claim that residence as a voting address, even if they no longer physically reside at that location, if they have intent to return." (emphasis supplied) This does not mean that one can simply "use" whatever address one wishes to use.

More fundamentally, under prior law, a corroborator was attesting to an individual's residence. That may mean a number of things. It could mean that the registrant stays in a park that he or she now lists as an address. It may mean that the registrant had established the address as his or her domicile and has not acquired a new one. It may mean that the address is a shelter where the registrant stays. But it does not mean that "I am simply permitting a registrant to use my address because he or she says there is no other."

There is no proof that this is what happened at the Taylor building. But the large number of active registrations there does warrant further inquiry - particularly in light of the fact that a number of the persons voting from that location seem to have used other addresses in relatively contemporaneous court documents. It was not wrong for Media Trackers to raise the issue and not unreasonable to expect an elected official to offer an adequate explanation of what went on.

* As our friend Mr. Foley points out, the version of 6.10(4) in effect at the time of last April's election referred to that place that the person considered his or her residence "10 days" (as opposed to 28 days) before an election. I do not mean to suggest otherwise. My concern here is how to determine whether persons resided at the Taylor building and not whether they were resident there for a sufficiently long period of time. The part of the law defining what constitutes the residence of such a person hasn't changed.

While I don't think sec. 6.10(4) is very helpful, I should point out that, in general, the period during which one had to be resident at a place in order to vote from there was 10 days prior to Act 23 (the voter ID bill). This eighteen day difference could be significant here but I have no reason to think that it is, i.e., the question I'm posing is whether these voters resided at the Taylor property and not whether they resided there "long enough."

Monday, November 21, 2011

Tom Foley seems to think that I was playing "fast and loose" with legal terms of art when I suggested - last February - that doctors who passed out sick notes to protesters on the Capitol Square who were not sick were engaged in fraud. He is so sure that he repeats it again and again and again.

In fact, he even suggests that I accused doctors of fraud "even though" there was "no finding of fraud" in a stipulation approved by the Medical Examining Board last week. This suggests that I misrepresented the action of the board. In fact, the post he refers to was written in February and was based on video evidence and press reports (including interviews with the doctors who were writing the notes). I stand by what I wrote (and I'll explain why in a moment) but any suggestion that I misrepresented or ignored a "finding" by the Medical Examining Board is wrong.

Let's review the bidding.

The Medical Examining Board accepted a stipulation (in other words, a settlement) disciplining certain physicians for failure to keep adequate records for those that they gave notes to on the square.
The board did not find, as Foley implies, that the allegations that fake sick notes were written were "baseless." The Chair of the board was quoted as saying that there may be "other issues" but that it was not possible to tell what level of evaluation of the patients was done by the physicians before it. She expressed the view that disciplining the doctors before the board for failure to keep records would be enough to ensure that this would not happen again.

In any event, there was no finding one way or another on fake sick notes because the parties decided not to litigate that. Even if they had, people might well draw different conclusions from whatever facts were presented. So let's proceed to what we know.

I express no opinion on the culpability of any particular doctor. I don't know which doctors wrote fake notes or whether any of the doctors before the board last week did so. Nor do I dismiss the possibility - as unlikely as it might be - that some of the notes written for strangers on the Capitol Square were legitimate, i.e., were written for people who did suffer from a medical condition of sufficient severity that they should not work. There is, moreover, a difference between concluding that some members of a group engaged in certain conduct and which members of the group did it in which cases.
But I have no problem with saying that doctors writing notes stating that persons who were well enough to protest at the Capitol were too ill to come to work were engaged in conduct that fits the legal definition of fraud. I have no problem saying that doctors who wrote notes based on no more than some one's representation that they had called in sick were engaged in conduct that meets the legal definition of fraud.

We usually use the word "fraud" in connection with intentional misrepresentation. (There are circumstances under which one can be liable for negligent or strict liability misrepresentation, but it would be less common to refer to that as "fraud.")

Establishing a claim for intentional misrepresentation requires one to establish that (1) the defendant made a factual representation; (2) which was untrue; (3) the defendant either made the representation knowing it was untrue or made it recklessly without caring whether it was true or false; (4) the defendant made the representation with intent to defraud and to induce another to act upon it; and (5) the plaintiff believed the statement to be true and relied on it to his/her detriment.

Writing a note misrepresenting that people who are both psychologically and physically well enough to stand out in the February cold marching, holding signs and chanting are "sick" and unable to work is a misrepresentation of fact. It seems reasonable to infer (and, in fact, videos taken at the time include admissions) that these notes were intended to be used by the recipient of the note to induce an employer to excuse that person's absence thereby depriving that employer of its contractual right to withhold pay or otherwise enforce contractual rights (by, for example, firing or taking other action with respect to someone who has refused to come to work).

There are persons who claim they were given notes without being examined. There is video of at least one doctor basing the length of an "excuse" on how long the patient says she was "sick" and how long "they" were planning "to go" - an apparent reference to her plans to stay out of work "through next Tuesday." There is someone in a lab coat - presumably a doctor - announcing that sick notes are being given to "anyone who needs them" because everyone is "sick of Scott Walker."
There is an example of a "patient" (actually Andrew Breitbart) getting a sick note. When asked whether he would get in trouble if he was "perfectly OK," he is told that he has "Walker pneumonia." (He is given the note without any corroboration of his condition other than his statement that he called in "sick" without even describing what his "illness" may have been.)

There are doctors saying that they are writing excuses for people who "need to be out here"for their mental health or for 'stress." There is another doctor who haltingly says that it is a "socially" OK thing to do because his parents were teachers. Beyond him, we see a line of doctors writing excuses for people who must have come to the Capitol because, hey where else can you get somebody to look at a scratchy throat?

There are persons who say that they, like Breitbart, were given notes without any inquiry as to their condition let alone the type of evaluation you would expect from a physician.
I am hardly the only one who was shocked and dismayed what happened at the Capitol and, in addition to the actions of the Medical Examining Board, some phyicsians have been internally disciplined by the UW.
Now I understand that some of the doctors who wrote the notes seem to think that being upset by the collective bargaining bill is a medical condition that is presumably ameliorated or in some way requires protesting. That doesn't bear scrutiny. While debilitating depression might be a basis for excusing someone from work, that doesn't appear to be the case here. The patients were obviously not "debilitated." That they would prefer - however strongly - protest over work is not the type of medical condition that most all of us - including most doctors - would regard as an illness.

Employers who excuse workers who have doctors' excuses expect that the doctors who write them will adhere to commonly understood meanings of illness and inability to work. They expect those physicians to make medical and not moral or political judgments. They expect physicians to do something other than simply write a note for persons who say they are sick.
And doctors know this. If you don't believe me, ask yourself whether any of these doctors would have written a note stating that Mr. Smith was so upset about a piece of legislation that he could not work and had to protest at the Capitol. And if they had written it, what do you suppose would have happened when Mr. Smith tried to use it.

Having said all of this, I don't think that the doctors should have lost their licenses or been charged with a crime or sued by the employers of those for whom they wrote fake notes. All of that seems disproportionate to me.

One of the worst political writers in America is Frank Rich. He personifies the worst of the self righteous establishment liberal. Coming upon the 48th anniversary of the assassination of John Kennedy, he writes in New York magazine of the "hate" that "killed" Kennedy, arguing that the resentment directed toward Kennedy by (presumably) conservatives is "eerily familiar" to that directed at Obama today. That hate, he implies, comes from the right.

Kennedy was killed by a self avowed communist.

The knots that the left has tied itself into in order to avoid acknowledging this has always been fascinating. For most of the intervening years, it has tended to blame some unspecified "sickness" in American society. Rich wants to blame the right for the murderous act of a man of the left. Nowhere in the entire article does he tell us who Oswalkd was and what he believed.

Sunday, November 20, 2011

Last week, I posted a quick and dirty reading of the DPI/WASD survey on the impact of the biennial budget on school districts. I thought that the survey needs a more thorough vetting but that it seemed to be a polemical document and did not support the claims of disaster that some are making in response to it.

Jay Bullock tries to defend the survey but I am afraid that he totally misses the mark. I have no reason to doubt that a number of districts had some kind of staff reduction. Most did not but it appears that somewhere in the neighborhood of 42% of the surveyed districts did.

But the doesn't tell us much. How deep were the reductions? How do they relate to changes in enrollment? What impact, if any, do they have on the delivery of services. Jay thinks that any reduction in staffing is a catastrophe, writing "[s]o, yes, a lot of districts were able to stave off disaster in this area but, you know, a full third didn't. " (emphasis in original)

Let's take a closer look at these "disasters." As I wrote in my original post, the mean "student/teacher ratio went from 13.27 in 2010-11 to 13.51 in 2011-2012. " Is that a disaster? Looking at median reductions, doesn't change the picture. For example, in the survey's comparison of districts that were "in" and "out" of contract, we see that the median loss for both groups were 1.2 and 1.0 FTE or, as human beings usually say "person." Is that a disaster?

I criticized DPI for excluding Milwaukee from its analysis of "in" and "out" of contracts districts. The defense for doing so was that Milwaukee is an "outlier" and doesn't affect the median teacher loss or "dramatically" impact the weighted average mean loss.

Well, of course (as I wrote), it wouldn't affect the median loss. You report medians to counteract the impact of outlying results. I would, however, like to see how it affects the mean average loss particularly since the mean average losses are so small.

The failure to show the impact is particularily curious since DPI begins its report by giving the aggregate losses across reponding districts which include reductions in Milwaukee. As the Journal Sentinel reports, almost half or the total staff reductions and 38% of teacher reductions were in Milwaukee. Thus, DPI uses the "outlying" district if it serves their anti-reform agenda and doesn't when it might not.

Beyond that, DPI tries to argue that the "reforms" did not help districts because those districts who were "in contract" were not all that different from those that were "out of" contract. But the survey seems to have counted as "in contract" districts who extended their contract by incorporating the compensation adjustments mandated by the reform bill. It is unlikely that those concessions would have been made in the absence of Act 10. A more meaningful concession would be between those districts who adopted the concessions and those (like Milwaukee) who did not. Jay himself concedes - albeit in a backhanded way - that this would have saved a lot of jobs in Milwaukee.

One of my specialites as a litigator is the cross examination of social science experts and results. A cursory examination suggests that a more complete vetting is in order.

Tuesday, November 15, 2011

In response to my post yesterday on Governor Walker, Lester Pines complains that the Governor's motivation was political based on the desire to destroy an institution that opposes the Republican Party and, although he doesn't say it, supports the Democrats. For Lester, collective bargaining reform "was motivated by a desire to eliminate the main opponents of the political and social agenda of the Republican Party, not to ensure that state and municipal budgets were balanced."

Two things. First, reforming collective bargaining is intrinsically tied with balancing state and municipal budgets. The contracts that labor unions negotiate cost money. They add cost not only by increasing wages and fringe benefits, but by imposing a panoply of work rules and limitations on the management of the public workforce that increase costs. If you make it harder to fire poor performers, change job duties and manage in a way designed to deliver the most service at the lowest cost, you make it more difficult to balance the budget.

Second, the political motivations for supporting or opposing collective bargaining as we have known it in Wisconsin cut both ways and, in my view, the fire side equities cut in the Governor's favor. To be sure, the Walker reforms will reduce the amount of money that unions have to contribute to the Democrats and spend in ways that promote the Democratic and left liberal agenda.

But why is that so?

It is so because the unions will now have to convince their members to support their political activities. In the past, unions could compel even those who did not wish to belong to unions to financially support their activities. While employees could ask that their fair share payments not include funds used for political activity, this is an enormously ineffective remedy. First, the amounts excluded as "political" are generally oonly a fraction of the amount that might be characterized as such. Second, money is fungible so even money used to support supposedly nonpolitical activities supports an infrastructure upon which political activities can be based. Third, it is enormously beneficial to the unions to require employees to "opt out." This makes it much easier to collect money than it would be if the unions - like every other organization that spends money on politics - had to convince members to choose to send them money and arrange to collect it themselves.

Eliminating these advantages will benefit Republicans and help Democrats just as retaining them would benefit Democrats and hurt Republicans. But there is no intrinsic right for unions to have them and, in fact, I would argue that retaining them is a serious imposition on the prerogatives of dissenting employees and confers an artificial advantage on Democrats.

Jim Rowen complains that Walker did not campaign on collective bargaining reform but it is unclear how that supports a recall. As George Mitchell asks, would Jim have thought it appropriate to recall Governor Doyle for not campaigning on a tax increase? Do we want a principle that says that public officials cannot implement any policy that they did not mention during their campaign?

I understand that Lester and Jim don't support the Governor and wish he was gone. Some of us had similar feelings about Governor Doyle (whose record of rewarding campaign supporters was every bit the equal - I would say much more blatant - than Walker's). Somehow we avoided an eternal campaign. But if recalls are going to become just another arrow in the political quiver, the Democrats may be sorry that they started this. Once a restraint on political combat is cast aside, it is almost impossible to go back.

One of the things that you learn as a lawyer is that a patina of reasonableness and respectability does not always withstand scrutiny. The DPI's Budget Survey Analysis reads like a document that might - at the least - list badly after closer examination. The survey reads like a piece of advocacy and presents as an established fact (lower clase sizes increase student performance) something that is, in fact, controverted and more complicated than the survey allows (reducing class size precludes other uses of resources).

Of course, I come to the question with a perspective. The risk of that is confirmation bias. The advantage is to insist that questions be asked and this survey seems to need a lot of work. One issue is the need for a baseline. I would not argue - and I don't think the Governor has argued - that the greater flexibility achieved by collective bargaining reform obviates the need for all service reductions. The state's fiscal problems were too severe for that. The real question to ask is how much worse they might have been and whether, under the circumstances, they are tolerable. To that end, the Governor's comparison of these reductions with those that took place in earlier years is instructive.

DPI recognizes this and attempts to compare job reductions in 2009 and 2010-11 with those reflected in the survey. Larger losses in 2012 are shown. But, curiously, this part of the report comes right after a section that claims that some of the districts used remaining stimulus dollars to avoid cuts in 2012. Fair enough, but why not address the extend to which stimulus dollars avoided staff reductions in the prior years, pushing them into 2012?

But, more importantly, how severe were these staff reductions?Most of the survey is unconcerned with that, focusing on the breadth of reductions, i.e.. what percentage of districts reduced teaching staff. The answer seems to be less than half - about 42% and only 22% of those who experience increased enrollment. But is that the most important question? Don't we want to know the magnitude of staff reductions?

The bottom line: The student/teacher ratio went from 13.27 in 2010-11 to 13.51 in 2011-2012.

No. That is not a typo. It comes p. 15 of the DPI's analysis. The Governor of the state of Wisconsin largely closed a longstanding structural deficit without raising taxes and the student/teacher ration went up by a quarter of a body, i.e., by less than 2%.

Recall him now!

Another issue is the need to distinguish between those districts that utilized the reforms and those that did not. The DPI says that is has done that but there is reason to be skeptical. As the Journal Sentinel points out, a huge percentage of reduction in force came in Milwaukee. The DPI uses this to maximize the extent of the cuts when it chooses to present statistics on the number of students who attend a district in which something has happened.

But, when it attempts to show that it "didn't matter" whether or not a district extended its contract to avoid the reforms with respect to the loss of teacher positions, it excludes Milwaukee noting that Milwaukee was an "outlier" - in other word it did matter in Milwaukee. That looks bad. While DPI says that texcluding Milwaukee does not change the median job loss (of course it wouldn't) or dramatically change the mean (but it would be nice to see the number), this reflects the approach of an advocate and not an evaluator.

In addition, the argument that it doesn't matter whether one can reduce certain costs and more efficiently manage resources is counterintuitive.This is an area which would seem to be in need of more robust analysis. How exactly did DPI choose between "in contract" and "out of contract" districts? Is a simple measure of force reduction an adequate way of evaluating whether collective bargaining reform helped districts to cope with reductions in state aid?

Releasing what seems to be a half baked survey to coincide with the commencement of the petition to recall the Governor seems overtly politicial. There is nothing wrong with that, I suppose. The DPI has always been a highly politicized agency and Tony Evers seems to be doubling down on that after some easing in recent years.

I spent most of last week in DC. In reviewing the responses to my column opposing the recall of Governor Walker, those opposing my position fell into three camps. First - and, unforunately, largest - were those characterized by unadorned name calling. I am, it turns, out full of s***, un-American, a**-licking, etc. Not a few commentators wanted to say that I am un-Christian and mired in sin for failing to accept the Gospel of the Democratic Party.

But there, thank God, people willing to make an argument and their responses were largely focused on the unfairness of a paycut for public employees (who they claim make less than those in "comparable" positions) and Governor Walker's failure to detail his budget reform proposal during the campaign.

What opponents did not do is challenge the notion that the state had a serious fiscal problem and that the reforms allow services to be provided for less money. No one can question that this at least reduces the needs for service cuts and sometimes eliminates it all together.

And no one did. They either argued as if fiscal questions can be addressed by deciding whether or not a bit of spending or cut is "good" in some absolute sense without regard or whether or how it can be paid for. State employees are paid, on average, far more than the average worker. Studies that purport to show that this is, nevertheless, less than the pay for "comparable" jobs are, I think largely worthless because there often are no "comparable" public sector jobs. Pay is determined by market forces - not by some aggregation of educational background, experience and hours worked - and the former is not readily controlled for in a study.

So a general tax increase to pay higher salaries to public workers is not easy to justify. Some commenters wanted to focus on taxing "the rich" and this will become the Holy Grail of American politics in 2012. The idea will be to avoid hard choices by imposing the cost on someone who is not us and seems to have more than what he or she "needs" already.

This is a temptation in American politics as old as the Constitution itself - famously warned against by Madison in Federalist No. 10. While I depart from some of my conservative colleagues in the belief that, say, repealing the Bush tax cuts for the truly wealthy or even minimizing the spread between the taxation of ordinary income and capital gains might not be disastrous, paying for things by "soaking the rich" is difficult and does not have a great historical pedigree. Wealthy people have the ability to engage in substanital tax avoidance behavior and there is a point at which tax rates become serious disincentives and impediments to capital formation. The problem is even worse at the state level because rich people don't, for the most part, have to live in Wisconsin.

Warren Buffett may have abased our public discourse as much as he informed it. Millions of Americans now believe that rich people pay a lower effective rate than the rest of us (on average and in the vast majority, they do not) and pay something less than their share of national income. (In fact, they pay much more.)

One can certainly wonder about the ballooning incomes of economic "superstars." But it is a mistake to think that fiscal challenges can be paid for by someone else.

Tuesday, November 08, 2011

My column in the Milwaukee Journal Sentinel on the Walker recall is here. Along the same lines, I recommend a piece in National Review by Reihan Salam and Tino Sandandaji. ( I would warn those liberal readers tempted to dismiss NR as a place where people preach to the choir to be careful and actually read the magazine.)

Salam and Sandandaji start with an interesting observation. Supporters of teachers' unions and the traditional views of the educational establishment ("money solves all probelems"), such as Paul Krugman, were quick to point out that students in unionized Wisconsin do better on standardized tests that students in non-unionized Texas.

They proceed to blow up the implications of that claim with the following observations:

White students in nonunionized Texas do better than white students in unionized Wisconsin.

Black students in nonunionized Texas do better than black students in unionized Wisconsin.

Hispanic students in nonunionized Texas do better than Hispanic students in unionized Wisconsin.

How can this be?

The answer is simple. Texas has a much higher proportion of black and Hispanic students than Wisconsin. Across the country, white and Asian students (as a group) outperform black and Hispanic students (as a group). So states with lower percentages of the underperforming groups will outperform states with higher percentages such as Texas, notwithstanding the fact that Texas may be doing a better job of educating each group.

This leads to a clarification, a warning and a challenge.

The clarification is that there is nothing "racist" about this observation. It is an incontrovertible fact and does not require that one buy into any sort of theory about innate racial differences. Different ethnic groups have had different experiences resulting in differing levels of social capital. (And, of course, group differences tell us nothing about any particular individuals.)

The warning is that America in the future will look a lot more like Texas. If Texas is doing a better job of educating minority kids (better being distinct from adequate) then we ought to take a look at what Texas is doing.

Finally, the challenge gets us to Scott Walker and collective bargaining reform. The preferred solution of the Educational Establishment is to "fully fund" public education. More money (and more teachers) will solve all. But as Salam and Sanadaji point out, spending on public education - in real terms - has gone through the roof (a 250% increase since 1970) while reading and math scores have remained flat and high school graduation rates have slightly declined. Much of the that money has gone into better pay for teachers and more teachers without impact, (In fact, the authors suggest that hiring more teachers has reduced teacher quality.)

How can we have spent more money with so little too show for it. A major part of the problem is teacher unions who quite naturally (that's what they are there for) privilege the interests of their members over the interests of students. Their objective is consistently to shift money to their members in a way that does not increase the burdens placed on their members. Thus, the consistent call for more money tied to length of service and not performance.

In conferring collective bargaining power in teacher unions, the state creates a cartel. Solving our educational challenges may require eliminating or weakening the cartel.

Monday, November 07, 2011

But I am not in favor of attempts to minimize training requirements for concealed carry permits. Regardless of what the legislature does, I feel comfortable saying this. If you carry without adequate training including hands on with your fire arm, you are an idiot and far more likely to harm yourself than an attacker.
My own concern is that the four hour classes are inadequate to the extent that they lack adequate intruction in handling, maintaining and actually firing a gun. Let Dad29 tell me if I'm wrong.

I don't have strong feelings about the "castle doctrine." The very thing that makes it attractive cuts against its necessity. Under current law, juries are unlikely to second guess the judgment of people who have had to make split second decisions in the face of a home invasion. Prosecutors, knowing this, may be reluctant to bring charges.
But this observation, while suggesting that the need for the doctrine is not great, also undercuts the arguments against it. If no one gets convicted for defending themselves in the event of a home invasion, then it is unlikely that a change in the legal standard will allow more people to get away with murder. (The idea that a change in a legal doctrine that few are even aware of will change people's behavior in a time of crisis is too contrived to take seriously).
Recognizing this, the Criminal Law section of the state bar association tries to argue that the doctrine will facilitate spousal murder. The argument is not persuasive.
In a floor memo authored by Greg O'Meara, the section says that a husband might now shoot his wife and then falsely claim that there was a home invasion. The reasonableness of his decision to use force cannot be examined and he is more likely to evade prosecution. The memo states that "AB 69 requires a jury instruction in every criminal case that the jury should find that, if the crime took place in the defendant’s home, vehicle, or place of business, the actor reasonably believed that he was the victim of an imminent attack with deadly force and that his own use of deadly force was presumptively necessary."
But that's not true. The bill requires that presumption only in the event of unlawful or forcible entry. While, its true, as the section's memo points out, that a defendant might argue that he was reasonably mistaken about the fact of an unlawful or forcible entry but, in order for the new law to be outcome determinative, a the jury is going to have to buy the mistake defense first. In other words, for the section's horrible to come true, we need a case where a jury would accept the defendant's story about a nonexistent home invader or whatever is supposed to have caused him to be mistaken will be accepted by the jury (at least so as to create reasonable doubt), but then conclude that the degree of force against this (actually) nonexistent behavior was unreasonable.
Such a scenario is possible but implausible. The perpetrator's story is always going to portray the "invader" as hell bent for mayhem or his mistaken reaction to some indication of an invasion as harrowing. If the jury buys it (or can't dismiss it so readily as to dispel reasonable doubt), it's hard to imagine a a case where it would not also conclude that the use of force was reasonable.
Consider the notorious murder of Barbara Anderson by her husband Jesse outside a restaurant at Northridge, Anderson falsely claimed that he and his wife were attacked and that he was wounded and she was killed in the attack. In fact, he killed her. The case doesn't involve a home invasion and the law afforded him no presumption of reasonable force, but I think it's still instructive. Anderson needed to sell - at least well enough to raise a reasonable doubt - that there was an attacker. If he had been entitled to use a presumption of reasonable force, it would have done him no good unless the prosecutor, or if he was charged, the jury gave the story sufficient credit to create reasonable doubt..
Assume they believe him, i.e., they conclude that there was an attacker. How likely is it that they will be able to conclude that his use of force was unreasonable?
A more plausible case is the homeowner who kills an invited guest and then falsely claims that he or she entered unlawfully. But in that case as well, the castle doctrine defense is determinative only in a scenario in which the jury buys the fabricated story of an invasion but would have concluded that the use of force in response to that nonexistent invasion was unreasonable. It strikes me as more plausible because there is likely to be physical evidence of what the victim was or was not doing apart from the perpetrator's lie (which both hypotheticals require us to assume that the jury at least does not disbelieve), but still pretty unlikely.
I can't help but think the castle doctrine debate is more about ancillary messages that is opponents and proponents want to send. It's proponents want to make a statement about property rights and self defense. It's opponents want to make a statement about subordinating property rights and the dangers of self defense. But i wonder whether the bill is likely to have a great deal of real world impact.

Tuesday, November 01, 2011

Wisconsin became the 49th state to permit concealed carry today and Eugene Kane is one frightened fellow. He's going to have to tread lightly because who knows when a casual encounter might lead to gun play? He's worried it's going to be like the OK Corral out there. Given the ways in which people get worked up over what they read in the paper, he is thankful that Journal Sentinel won't allow guns on its premises. I do suppose that anyone who is hell bent on busting a cap in a newspaper columnist will be deterred by the fact that guns aren't allowed on the premises.
That's all to be expected. I could have read that column without him having to write it. But the interesting thing is that he refutes himself without appearing to have recognized. Mr. Kane allows how he has traveled to other states that permit concealed carry (that would be everyone other than Illinois) and "most times" (I suspect it's more like all times) doesn't "think about it." This is, he says, because the fact that other people may be carrying does not give him an added sense of security.
But, if he doesn't think about it, there is something else that the laws in those states aren't giving him either - a heightened sense of apprehension.
And they shouldn't. Kane writes that "[p]ro-gun advocates insist concealed carry laws lead to a decrease in crime, but statistics don't bear that out in any discernible way." That sentence proves more than he wants it to. Some scholars claim that concealed carry reduces crime. Others attack studies that purport to show that criticizing their methodology. So he could be right. We don't know if concealed carry reduces gun crime.
But there is precious little evidence that even suggests an. A few years ago, at Marquette, I moderated a debate between John Lott, author of a book called More Guns, Less Crime and an Richard Withers, who used to run a handgun violence center at the Medical College of Wisconsin and is anadvocate of handgun control. They agreed about little. But the one they thing that they agreed upon is that concealed carry cannot be shown to lead to increases in gun crime. I am aware of a few people who argue that there may be a modest negative impact, but it is pretty hard to say that concealed carry has, as Kane would put it, a discernible effect on crime. The spontaneous shootouts that Kane fears don't happen.
So he can relax.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.